substantive and procedural due process. Defendants are correct
that violations of these provisions are not immediately
apparent from the allegations or evidence. For example, there
are no allegations of restriction of John's freedom of speech
or religion, or his rights peaceably to assemble or to
petition the government for redress of grievances. The warrant
and search and seizure requirements of the fourth amendment
and the indictment, double jeopardy, self-incrimination, and
just compensation requirements of the fifth amendment also
appear to be irrelevant to plaintiffs' factual allegations.
Plaintiffs, however, argue that the "peripheral protection"
provided by these amendments may well have been violated by
defendants in this case. (Plaintiffs' Memorandum in Response,
filed 8/21/84, at 45-46.) Specifically, plaintiffs point to
the holding of Griswold v. Connecticut, 381 U.S. 479, 484, 85
S.Ct. 1678, 14 L.Ed.2d 510 (1965), that "specific guarantees in
the Bill of Rights have penumbras" and the fourth and fifth
amendments have been found to protect "the sanctity of a man's
home and the privacies of life." The court agrees with
defendants that the privacy interests created by Griswold and
its progeny do not apply to a case involving deprivation of
life. The parties have not been able to find a case supporting
plaintiffs' construction of Griswold, and the court finds that
the provisions of the due process clause more properly address
the deprivation of life complained of here. Defendants' motion
for summary judgment is therefore granted on the first, fourth,
and fifth amendment claims.
C. Claims under 42 U.S.C. § 1985-1986
Plaintiffs have alleged that defendants violated 42 U.S.C. § 1985
and 1986. Although plaintiffs do not specify which
subsection of § 1985 is applicable, § 1985(3) is most on point.
That subsection creates a private claim for damages for one
injured in person or property or deprived of rights or
privileges of citizenship by an unlawful conspiracy to deprive
him or her of equal protection or privileges and immunities of
the laws. Section 1986 creates a private damages claim against
one who knowingly fails to prevent the wrongful conduct made
unlawful by § 1985.
In order to state a claim under § 1985(3), plaintiffs must
allege "some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators'
action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct.
1790, 1798, 29 L.Ed.2d 338 (1971). Defendants argue that no
such discrimination is alleged here, while plaintiffs point out
that because John was a severely retarded citizen, "[t]he Court
may well find that in such capacity, he was a member of a class
sufficient to satisfy the requirement of a class-based
discriminatory animus." (Plaintiffs' Memorandum in Response,
supra, at 47.)
The Seventh Circuit has not determined whether animus
against other than racial classes is actionable under §
1985(3), Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir. 1976);
Murphy v. Mount Carmel High School, 543 F.2d 1189, 1192 & n. 1
(7th Cir. 1976), although in those cases it has suggested that
classes based on ethnic origin, sex, religion, or political
loyalty may be actionable thereunder. Recently, however, the
Seventh Circuit has ruled that § 1985(3) does not create a
claim on behalf of handicapped individuals. D'Amato v.
Wisconsin Gas Co., 760 F.2d 1474, 1486-87 (7th Cir. 1985). To
the extent D'Amato suggests that § 1985(3) protects
classes of the type protected by the federal equal protection
clause, 760 F.2d at 1486, it is noteworthy that the Supreme
Court has recently found that legislation concerning mentally
retarded individuals is not entitled under that clause to "a
more exacting standard of review than is normally accorded
economic or social legislation." City of Cleburne v. Cleburne
Living Center, Inc., ___ U.S. ___, 105 S.Ct. 3249, 3256, 87
L.Ed.2d 313 (1985).
These cases persuade the court that plaintiffs have not
stated a claim under § 1985(3). Defendants argue further that
even were mentally retarded persons
protected by this subsection, the claims would have to be
dismissed. Specifically, defendants contend that plaintiffs
cannot demonstrate an intent to deprive John of his rights
because of his handicap. Defendants are correct, and
plaintiffs do not dispute, that because § 1985(3) requires a
conspiracy, a claim thereunder must include allegations of an
intent and agreement to deprive the claimant of equal
protection or privileges and immunities of laws. See Lenard v.
Argento, 699 F.2d 874, 882 (7th Cir.), cert. denied,
464 U.S. 815, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983) (elements of civil
conspiracy); Munson v. Friske, 754 F.2d 683, 694 (7th Cir.
1985) (elements of § 1985(3) claim). Defendants argue that all
of the WDC residents were mentally retarded individuals, and
hence it is "inconceivable" that those who would voluntarily
accept employment at the facility would conspire to deprive a
resident of rights because of his mental retardation.
(Defendant's Memorandum in Reply, supra, at 19-20.)
While the court concedes that such a claim would be
difficult to prove, it is not inconceivable that defendants'
treatment of John was determined in part by their knowledge
that as a nonverbal, mentally retarded individual, he was
defenseless or deserving only of sub-standard care. Because
plaintiffs have otherwise failed to state a claim under §
1985(3), however, the court need not address the sufficiency of
the evidence and allegations to state such actionable
misconduct. Defendants' motion for summary judgment addressed
to the § 1985(3) claim is granted.
Defendants' motion for summary judgment on the § 1986 claim
must be granted as well. A review of § 1986 quickly confirms
the wisdom of the Seventh Circuit's concise holding that, where
plaintiffs had failed to state a claim under § 1985, "[i]t is
equally clear that [they] have no cause of action under
42 U.S.C. § 1986, since that section merely gives a remedy for
misprision of a violation of 42 U.S.C. § 1985." Williams v. St.
Joseph Hospital, 629 F.2d 448, 452 (7th Cir. 1980). See also
Doyle v. Unicare Health Services, Inc., 399 F. Supp. 69, 75-76
(N.D.Ill. 1975), aff'd, 541 F.2d 283 (7th Cir. 1976).
D. Claims for Violation of Due Process
1. Procedural Due Process.
The plaintiffs argue that defendants violated their son's
rights to both procedural and substantive due process under
the fourteenth amendment. The Supreme Court addressed the
elements necessary to state a claim for deprivation of
procedural due process in Parratt v. Taylor, 451 U.S. 527, 101
S.Ct. 1908, 68 L.Ed.2d 420 (1981). Drawing from the amendment's
commandment — "nor shall any State deprive any person of life,
liberty, or property, without due process of law" — the Court
indicated that a private claim thereunder must involve a
protectible interest and the deprivation of that interest
("even though negligently caused") by a state actor. Id. at
536-37, 101 S.Ct. at 1913-14. It is clear, and defendants
admit, that John was deprived of his life while in defendants'
actual or constructive custody without the benefit of a
hearing. (Defendants' Memorandum in Support, supra, at 1.)
They also admit that at the relevant times they were acting
under color of state law. (Id.) However, they contend that
plaintiffs' procedural due process claim must fail because a
state-created wrongful death action provides the requisite "due
process." Parratt, 451 U.S. at 540-43, 101 S.Ct. at 1915-17;
see Illinois Wrongful Death Act, III. Rev.Stat. ch. 70, ¶ 2.
In Parratt, the plaintiff, a prison inmate, sued prison
officials for their negligent loss of a hobby kit that he had
ordered, alleging deprivation of property under color of state
law without due process. The Court quickly recognized that a
deprivation of property had been accomplished under color of
state law, and proceeded to address the question whether the
deprivation occurred without due process. While noting that in
many cases due process requires predeprivation hearings, the
Court pointed to several cases in which postdeprivation
process satisfied the requirements of the fourteenth
These cases recognized that either the necessity
of quick action by the State or the
impracticability of providing any meaningful
predeprivation process, when coupled with the
availability of some meaningful means by which to
assess the propriety of the State's action at
some time after the initial taking, can satisfy
the requirements of procedural due process.
Id. at 539, 101 S.Ct. at 1915 (footnote omitted). It cannot be
disputed that a hearing need not always precede the "initial
deprivation" in order to satisfy the due process clause. Id. at
540, 101 S.Ct. at 1915.
The cases cited by the Court in support of the proposition
that postdeprivation hearings may satisfy due process involved
deprivations of protectible interests accomplished under
established state procedures. The Court next found these cases
"applicable to a situation such as the present one involving
a tortious loss of a prisoner's property as a result of a
random and unauthorized act by a state employee," explaining
In such a case, the loss is not a result of some
established state procedure and the State cannot
predict precisely when the loss will occur. It is
difficult to conceive of how the State could
provide a meaningful hearing before the
deprivation takes place. The loss of
property . . . is in almost all cases beyond the
control of the State. Indeed, in most cases it is
not only impracticable, but impossible, to provide
a meaningful hearing before the deprivation.
Id. at 541, 101 S.Ct. at 1916. Because the prisoner in Parratt
could recover the value of his hobby kit in a state-created
tort suit, the Court concluded that this postdeprivation remedy
satisfied the requirements of the due process clause. Id. at
543, 101 S.Ct. at 1916. See also, Hudson v. Palmer, ___ U.S.
___, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984) (Parratt
applicable to intentional deprivations of property as well).